Democratic AGs, US House of Representatives file responses in ‘Obamacare’ challenge

CHARLESTON, W.Va. — A month after Republican state attorneys general and the U.S. Department of Justice filed legal briefs challenging former President Barack Obama’s health care law, parties supporting the statute submitted their responses with the U.S. Supreme Court.

Twenty-one Democratic attorneys general and the U.S. House of Representatives argued in separate reply briefs on Wednesday that Congress’ decision to reduce the individual mandate to zero did not eliminate the provision’s legal standing, but rather make the penalty for not purchasing health insurance “inoperative.”

“Respondents challenge the constitutionality of just one of the ACA’s hundreds of provisions … on the ground that it must be read as a command to purchase insurance,” the Democratic attorneys general said in their brief. “But the Court already held that the text invoked by the respondents should not be read that way.”

The Republican attorneys general — a coalition which includes West Virginia’s Patrick Morrisey — and the Justice Department have argued the individual mandate is essential for “Obamacare.” A federal circuit court and appellate court previously struck down the individual mandate, yet only the U.S. District Court for the Northern District of Texas ruled the entire law is unconstitutional because federal lawmakers reduced the penalty as part of the 2017 Tax Cuts and Jobs Act.

A ruling striking down “Obamacare” would end the legal protection for covering pre-existing conditions as well as state Medicaid expansion efforts and funding states receive for health care needs.

Around 718,000 non-elderly West Virginians have a pre-existing condition, and more than 162,000 people have enrolled in the state Medicaid Expansion program as of May 4.

California Attorney General Xavier Becerra told reporters the effects of the law’s end would be tremendous.

“The nation continues to weather this unprecedented public health crisis,” he said, referencing the coronavirus pandemic. “At the same time, Donald Trump and his administration continue to gamble with Americans’ health.”

Becerra mentioned the Supreme Court’s 2012 decision upholding “Obamacare,” saying the decision confirmed the legality of the individual mandate. He added a change to the penalty does not nullify the entire law.

California Attorney General Xavier Becerra (California Department of Justice)

He also noted the benefits of the law amid the coronavirus pandemic, which has included special enrollment periods for people who have lost their jobs. The U.S. Centers for Medicare and Medicaid Services reported in June around 487,000 Americans gained health insurance coverage by enrolling during special enrollment periods.

“Why would you right now be proposing that we get rid of the one backstop, the safety net that so many Americans have been able to grab onto over these last several years at this time of pandemic?” Becerra said.

The Democratic attorneys general and the House of Representatives additionally argue the individual mandate may be severable from the rest of “Obamacare.”

“All of the ACA’s remaining provisions, including the guaranteed-issue and community-rating reforms, will operate perfectly well if Section 5000A is invalidated,” the House argued.

“Millions of people continue to obtain affordable insurance through the ACA exchanges notwithstanding Congress’s decision in 2017 to render Section 5000A ineffective as a practical matter. None of that will change if Section 5000A is also rendered ineffective as a formal matter.”

During this year’s regular legislative session, Morrisey pushed a proposal that would have prohibited insurance providers from not guaranteeing coverage of pre-existing conditions if “Obamacare” is not in effect. The state Legislature did not pass the bill.

Curtis Johnson, press secretary for the West Virginia Office of the Attorney General, said in a statement Morrisey remains supportive keeping coverage of pre-existing conditions.

“Attorney General Morrisey believes in a multi-faceted approach that pursues state-based solutions to ensure coverage for those with pre-existing conditions, while helping all West Virginians overcome the failings of Obamacare — chief among them its unmanageable, skyrocketing premiums and its unconstitutional individual mandate,” Johnson told MetroNews.

Trump has said pre-existing conditions would be covered in another health care bill, yet Becerra said the legal challenge and the previous attempts to repeal “Obamacare” show Republicans are more concerned about getting rid of the law than ensuring insurance access.

“He is actively, as we speak, arguing in the Supreme Court to strip away those very protections and much, much more. That’s what he does,” Becerra said of Trump.

Another round of reply briefs is due Aug. 19. The Supreme Court will hear oral arguments in its next term to begin in October with a decision likely after the November election.





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